United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR P WARD (of Counsel) Instructed by: Messrs Levenes Solicitors Grove House 140-142 The Grove Stratford London E15 1NS
Respondents	No appearance or representation by or on behalf of the Respondents


 


MR JUSTICE LINDSAY (PRESIDENT)

1. I have before me a Directions Hearing in the matter Ms A Walton -v- (1) Image Creative Ltd (2) Rowan Bayliss, an individual. Today Mr Peter Ward appears for Ms Walton who is seeking particular directions. The Respondents do not appear but are represented in the case generally by Peninsula Business Services and Peninsula has put in some written arguments; they do not attend.
2. On 7 April 2000, Ms Walton put in an IT1 for unfair dismissal, sex discrimination, victimisation within the Sex Discrimination Act 1975 and breach of Working Time Regulations, against those two Respondents, Image Creative and Mr Bayliss; Mr Bayliss, I think, was her line manager. She had solicitors acting for her at the time.
3. On 4 May, Image Creative put in an IT3. They, too, were represented by solicitors. But there does not appear to be, not at any rate in my papers, an IT3 from Mr Bayliss, but that does not seem to have had any consequence.
4. On 3 and 4 October 2000, there was a hearing at London Central. Ms Walton had Counsel and both Respondents had one representative between them. On 17 October, the Decision was sent to the parties. It was the Decision of the Tribunal at London Central, under the chairmanship of Mrs J R Hill and the Decision was unanimous, and it was:

"i the Applicant was not the subject of sex discrimination;

ii. the Respondents did not constructively unfairly dismiss the Applicant; and

iii. the complaint under the Working Time Directive is dismissed on withdrawal by the Applicant."

5. On 19 January of last year, a long and rather discursive affidavit was put in by Ms Walton inter alia alleging bias and misconduct on the part of the Chairman, Mrs J R Hill. That was sent off to Mrs Hill for comment in the usual way and she gave her comments on 8 February of last year, and then the matter came back to the Employment Appeal Tribunal by way of preliminary hearing on 18 May of last year, before Ms Recorder Cox QC, and the Notice of Appeal was permitted to go to a full hearing, subject to being amended, and provision was made for further consideration by Ms Cox of a request that some, at least, of the Chairman's Notes should be furnished.
6. On 31 May, there was an amended Notice of Appeal largely complaining of perversity and bias in relation to the Decision of the Employment Tribunal. On 5 June, the Appellant's, Ms Walton's, advisers suggested that a tape made of the proceedings at the Employment Tribunal should be listened to; alternatively, that Chairman's Notes of the full hearing should be available.
7. On 16 July, Ms Recorder Cox ordered that the Employment Appeal Tribunal would request the totality of the Chairman's Notes, so Ms Walton, having presented as alternatives either a listening to the tape or full notes, eventually succeeded in getting the latter of those two alternatives. However, when those Chairman's Notes were furnished on 12 September of last year, Ms Walton alleged that the Chairman's Notes did not adequately or accurately record what was done and said at the Tribunal and still wished to hear the tape or tapes. I should mention that there is no common practice as to taping Employment Tribunal proceedings, but there are one or two pilot schemes being run and it must be that Mrs Hill's particular hearings on 3 and 4 October fell within that pilot scheme.
8. On 9 October of last year Peninsula, writing on behalf of the Respondents, took the view that the Chairman's Notes did indeed reflect accurately the hearing and they referred to a case called Dexine Rubber Company -v- Alker [1977] ICR 434, that sets out the technique to be used if there is a dispute as to Chairman's Notes. Indeed, Peninsula also cited a case called Owen -v- Briggs [1981] IRLR 133, and an unreported case at EAT/ 610/79.
9. On 19 October of last year the Appellant's solicitors renewed their request to the EAT for the tapes to be made available, one way or another, and on 15 November, they wrote to the Employment Tribunal in order to seek to arrange a listening to the tapes.
10. On 19 November of last year, the Employment Tribunal refused access to the tapes without there being an Order of the Employment Appeal Tribunal and so on 29 November the Appellant's solicitors again requested the EAT to make some provision for the tapes to be released or listened to. On 14 January, the Registrar at the EAT indicated that a party in this position is able to seek that the tapes should be put into the hands of one of the authorised shorthand writers in order to have a transcript made.
11. On 1 February of this year, the Employment Tribunal - although this letter is not in the bundle - apparently refused a request of the Appellants to allow them to have access to the tape and on 11 February, on the matter being pursued by the Appellants' advisers, the Registrar ordered that there should be a Directions Hearing before the main hearing of the case, which is fixed for two days, beginning on 13 March this year. On 13 February, a few days ago, notice was given by the Employment Appeal Tribunal of that Directions Hearing being convened for today. That is the chronological background to the matter.
12. It is important to bear in mind that the substantive hearing is due to start on 13 March. It seems to me that it would be quite wrong to allow that date to be jeopardised, given that the Respondents had one of the two possible techniques pointed out to them as early as 9 October of last year when, as I mentioned, Peninsula drew attention to the practice indicated in the Dexine Rubber case. It would be wrong to jeopardise the hearing of 13 and 14 March where, at any rate on one view, the reason for the possible jeopardy to the 13 March and 14 March is that the technique in Dexine Rubber was not put into effect sooner. It is fair to say, though, that the Dexine Rubber case was a case at a time when there was no taping of Employment Tribunal techniques and, of course, it is not now necessarily the only possible way of dealing with the problem.
13. I have indicated to Mr Ward, in the course of his address to me, that the High Court practice, as he will well know, is that in this sort of circumstance the tape is put in the hands of an authorised member of the tape transcription panel and a transcript is made. It seems to me that that is the appropriate technique to be used here, and given a choice, Mr Ward indicates that, as between following Dexine Rubber at this juncture or using the authorised members of the tape transcription panel, he would prefer and his client would prefer the latter. So what needs to be done, it seems to me, is this - and it has to be done in a fairly tight timetable - that I will have to prescribe dates that do not jeopardise the hearing on 13 and 14 March because, as I have said, it would be quite wrong to cause that to be put off, given the history of the matter.
14. So what needs to be done is first of all, Ms Walton's advisers need to select one of the authorised members of the tape transcription panel and then tell the Employment Tribunal of who it is they have nominated; I will hand out a list of the members of the tape transcription panel which gives their standard terms of trading, and their addresses and telephone numbers.
15. Then arrangements will have to be made for the chosen authorised member of the tape transcription panel directly to collect the tape from the Employment Tribunal. It would be quite wrong that the tape should be handled by the Appellant or the Appellant's advisers, or by any other party or by any other party's advisers; it needs to go straight from the Employment Tribunal into the custody of the authorised member of the tape transcription panel who has been selected for the job.
16. As I understand it, and I will come back to Mr Ward on this if it is wrong, it is the whole of the proceedings, so far as they were taped, that is to be transcribed and the transcriber is to be asked to include notification or transcription of any passages or sounds which may be thought to be improper or disrespectful or unreasonable behaviour on the part of any party or any witness or any Tribunal member. So to that extent, all nuances are to be captured as far as possible.
17. The authorised member's transcription of the tape or tapes is then to be in the hands of the Employment Appeal Tribunal and in the hands of the Respondents by not later than 4 pm on 8 March. If the authorised member of the tape transcription panel cannot provide it by then, well then, the exercise will have been quite pointless, and so it would be prudent to establish, before the process is begun, that if the tape is supplied by such and such a time, it can indeed be transcribed as I have mentioned and that the transcription can be supplied by 4 pm on 8 March.
18. This is not a matter for me, but it is just a matter of warning, that the authorised member of the tape transcription panel will be likely to look to the Appellant's solicitors for the cost and it seems to me right that the costs of the transcription and of the copies are to be borne by the Appellant in any event, because the matter is largely a consequence of the Dexine Rubber case not having been followed earlier.
19. Now if, after a moment's reflection, the Appellant choose to adopt this timetable and this technique, then Mr Ward will let me know and the Employment Appeal Tribunal will then forthwith inform the Employment Tribunal so that the Employment Tribunal will know that some member of the authorised tape transcription panel will be likely to be requesting a copy of the tape at short notice. But that, as it seems to me, is the appropriate course to follow, and I will hear Mr Ward if there are any further details that we can improve upon.